copyright law and derivative works...giants” refers to the “obvious” notion that no work of...

Introduction

I. Regulating creativity

Copyright law regulates creativity. It affects the way people create works ofauthorship ex-ante and has significant implications on the status of works ofauthorship ex-post. But does copyright law really understand creativity? Shouldlegal theories alone regulate creativity? This book aims to examine the relationshipbetween the law and creativity, and asks whether copyright law should be adjustedto better accommodate non-legal understandings of the creative process.

A derivative work is one based on a preexisting work. Today, the owner of awork of authorship has the exclusive right to make derivative works based uponthe original or to allow others to do so. This means that the owner may preventother authors from using the original to make their own new works. Thus, incontrast to other copyright doctrines, which are often viewed in light of the ten-sion between users and authors, the derivative works right raises a tension betweenauthors and other authors. This makes the right to make derivative works a goodlens through which to examine the relationship between the law and creativity.

This book examines such tension in light of cognitive psychology and genretheories’ understanding of creativity and the creative process, in order to reviewthe relationship between copyright law and creativity. It suggests a new way ofthinking about the right to make derivative works that could both relieve thistension and harmonize the normative basis for the right with non-legal under-standings of the creative process.

II. The role of the derivative work right in regulating creativity

Copyright law is in constant tension with two competing purposes – promoting crea-tivity by incentivizing authors, and granting maximum access to users. Often, users arethemselves authors, which creates a more complex tension between first and secondauthors. This tension is most prominently evident in the right tomake derivative works.

Authors’ rights to their works are divided into two main types: the materialright to economically exploit the work, and the moral right, which protects thepersonal relationship between the author and her work. Most countries in theworld grant authors the material-financial protection of copyright. This grant

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usually comes in the form of a bundle of specific rights which protect an author’sability to economically exploit their work. In the United States, for example, theCopyright Act grants an author five different rights – the reproduction right,the distribution right, the public performance right, the public display right, andthe right to make derivative works.1 Similar rights exist in many other countries,thanks mainly to the broad application of international treaties.2

The right to make derivative works, in its modern sense, grants the owner of anoriginal work the exclusive right to make works based on the original, and thus theright to prevent others from making derivative works.3 The first work’s owner alsogains all of the other rights copyright guarantees with respect to the second work.4

Derivative works can be created in the same medium or a different medium. Forexample, an adaptation of the book “Harry Potter and the Chamber of Secrets”into a motion picture would constitute a derivative work. J.K. Rowling, the ownerof the novel, owns the exclusive right to make such an adaptation, and only she isallowed to make such use or allow others to do so. This, despite the fact that thesecond work, the film adaptation, is in a different medium to the first work, a novel.Similarly, writing a new book using themes, characters, and locations detailed in theHarry Potter book series but a different plot may also constitute a derivative work.5

A derivative work can be created within the same medium of the first work (creatinga sequel to a book series) but also across different media (as in a motion pictureadaptation of a literary work). In both instances, second authors cannot create anduse the second works unless they obtain proper consent from the first author orunless specific legal defenses apply. Who owns a derivative work created without thefirst author’s consent remains unclear.6

There are two problems with the derivative works right’s current formulation.First, it is too narrow in the sense that it is often overshadowed by the reproduc-tion right, and it gets applied and discussed in too few cases. Second, it offers thefirst author full control over derivative second works, making it much too strong.

The derivative works right applies to a crucial aspect of the creative process andthe creative world as a whole. The common saying “standing on the shoulders ofgiants” refers to the “obvious” notion that no work of authorship is created fromnothing. In order to create and innovate one has to rely on previous knowledgeand creations.7 This notion is so obvious that it has become cliché.8 Moreover,literature on the cognitive process of creation informs us that, as far as the creativeprocess is concerned, using preexisting knowledge relevant to the creative domainis a central and crucial component.

Sociological study of the creative world has also revealed that preexisting expres-sions form common creative building blocks for authors and audience membersalike. Authors use these building blocks as tools to enable their own creativity. Inturn, audience members use them as meaning making tools, to help understand andattribute value to creative works. Preexisting expressions thus play a central part inall creative fields, including cultural creativity. Together with technological innova-tions, they enable the development of new creative patterns and new types of cul-ture. Consider, for example, appropriation art, like musical mash-ups and remixes,the cultures they enrich, and the subcultures they have created.9

2 Introduction


Using preexisting expressions to make new works also ensures cheap andavailable creative raw materials. This enables the creative world to grow in aneconomically efficient way. Additionally, the use of preexisting expressions has adistributive effect, because the wide availability of cheap building blocks ensuresthat those who could not otherwise afford to participate in the creative world haveaccess to creative raw materials.

The right to make derivative works is essential, and protecting it, at least to acertain extent, is important. However, protection raises its own challenges. Themodern right significantly extends the quasi-monopoly that copyright grants thefirst author. This is true not only with respect to the exploitation of a first work,but also and perhaps mainly with respect to any and all additional works ofauthorship that flow from a first work. Because every original work potentiallyserves as the basis for another work, this extensive grant raises a constant tensionbetween first authors’ rights to make and control derivative works and secondauthors’ rights to create new works. In this sense, the right to make derivativeworks is very different from other domains of copyright law, which focus on thetension between authors and users. In fact, it crystalizes the theoretical and prac-tical difficulties of the copyright regime as a whole. These tensions and the optimalways to deal with them are at the heart of this book.

To understand the essence of the right to make derivative works and the ten-sions it raises, we must first understand its legislative development and its positivescope. Initially, first authors were only granted the right to prohibit literal or ver-batim reproductions of their works. However, this right was gradually extended.During the nineteenth century, it grew to include a right against non-consensualtranslations and dramatic adaptations. The United States Copyright Act of 1909further extended first authors’ rights to protect their works from other types ofnon-consensual uses. The right to make derivative works was first introduced as anindependently legislated right in the United States in 1976 as part of the newCopyright Act. The act defined derivative works as “work[s] based upon one ormore preexisting works.”10

American courts also gradually expanded the reproduction right to includeprotections against “partial reproduction” and even material substantially similarto a first work. This judicially effected expansion constituted a de facto acknowl-edgement of the right to make derivative works even before it was even legis-lated.11 However, as the right to make derivative works developed, it expanded incomparison to the reproduction right.12

The right to make derivative works now exists in various forms in other jur-isdictions as well. The English Copyright, Designs and Patents Act from 1988does not include a broad right to make derivative works. Instead, it grants theauthor of a first work the right of adaptation, which includes the right to specificuses of works based on the first work. These uses are quite extensive, and are inaddition to the author’s general exclusive right to make copies or partial copiesof the first work. This scheme also functions as a de facto grant of an exclusiveright to make derivative works.13 The derivative works right exists in continentalEurope as well. For example, in France, authors have the exclusive right to

Introduction 3


translate, adapt, or transform their first works. Likewise, in Germany, authorshave the exclusive right to exploit or publish adaptations or transformations oftheir works.14

In contrast to the reproduction right, which grants the owner of the firstwork the exclusive right to reproduce the work itself, the modern day deriva-tive works right grants first authors control over any secondary markets thatsecond authors create by changing or adding expression to first works.15

Consequently, an argument has developed in the literature that, in its moderndefinition, the right is overbroad and unsupported by the theoretical justifica-tions of copyright law.16

By granting first authors rights in second works, the derivative works right alsoraises questions about the originality requirement. Second authors can enjoysome copyright protection in their derivative works. However, copyright onlyaffords them protection of the specific creative elements which they add to thefirst works they change.17 Moreover, before a work can be considered derivativeand not a reproduction, a second author must affect a change in the first work.Moreover, not every change necessarily qualifies. For example, Patrick Ogilvy hasargued that using a first work in its entirety, changing only its “method of pre-sentation,” should be differentiated from embedding a first work in another, newwork in a manner that changes the first work substantively.18

Scholars such as Nimmer and Goldstein, have in fact argued that a derivativework requires a higher standard of originality in comparison to the lower “mod-icum of creativity” required from the author of the first work.19 And indeed, invarious circumstances, a derivative work can also constitute an original work ofauthorship under modern copyright law. Yet, the making of a derivative work itselfmay infringe on the first author’s derivative works right.

This book examines whether the broad right to make derivative works, asdescribed above, is justified both in its scope and in the strength of theremedies it affords the first author. It uses not only legal theory and tools,but also non-legal fields which look at the behavioral and sociological-philo-sophical aspects of creativity. After extracting the relevant notions to deriva-tive works from the fields of creativity studies (Chapters 1 and 2),reevaluating the normative theoretical aspects the derivative works right(Chapter 3), and examining the relevant case law, it argues that the right tomake derivative works is too narrow in scope and too broad with respect tothe strength of the remedies it affords the first owner (Chapter 4). It thenchallenges modern copyright law to fully separate the right to make derivativeworks and the reproduction right, and to offer a new remedy model whichrestricts the first author’s control over the making of new derivative works(Chapter 5).

Beyond its independent importance to the rights it addresses directly, this dis-cussion also emphasizes the need to reexamine basic doctrines from time to timeand ask if and to what extent they fulfill their intended purposes. It may also serveas a case study for the potential contribution of interdisciplinary analysis to copy-right and intellectual property law in general.

4 Introduction


III. The existing legal debate on the derivative work right

Relatively little existing literature specifically addresses the derivative work right,especially in comparison to other copyright law doctrines. Those discussions focuson the right’s theoretical justifications, concerns about its scope in modern legis-lation, and its hypothetical implications on the creative world. But the definition ofthe derivative works right’s scope is inconsistent in the case law and the literature,perhaps because it is so new and broad.20 To the extent it has been addressed,scholars agree that, in its modern form, the derivative works right is broader thanits theoretical justifications merit, and that it may have a restraining effect oncreativity.21 There are, however, different approaches as to the theoretical andpractical grounds of this conclusion.

One of the criticisms levelled focuses on the constant tension between the deri-vative works right and freedom of speech. The argument is that granting the firstowner an exclusive right to control the development of the discourse with respect tothe first work unjustifiably and perhaps unconstitutionally restricts freedom ofspeech.22 This approach is based on the democratic justification to copyright law,casting it as inseparable from the democratic mechanism. Under this theory, theultimate goal of copyright protection is to facilitate and enable free public discourseindependent of the state, thereby safeguarding available access to information andenabling individuals to participate in the public discourse and create meaning.23

Another common criticism is that the broad scope of the derivative work rightoutstrips copyright law’s economic justifications. Under this theory, copyrightprotection is justified because it incentivizes private investment in the productionof original expressions by granting authors the exclusive right to exploit theirworks. This enables authors to recoup their original investments and potentiallymake gains.24 However, it has been argued that granting first authors exclusivecontrol over derivative works provides only marginal additional incentive, and thatthis limited value is outweighed by the costs associated with prohibiting secondauthors from making unauthorized derivative works. In essence, these critics arearguing that the exclusive right to exploit the first work is already sufficientincentive and that the inefficient transaction costs imposed by an exclusive right tomake derivative works therefore unnecessarily limit the scope of future creativity.25

In fact, after reviewing the literature, only two commentators hold the opinionthat the broad definition of the derivative work right is justifiable. According toMichael Abramowicz’s approach, the broad right to make derivative works iseconomically justified. While he agrees that a broad derivative work right may leadto a deadweight loss in some circumstances, he argues that granting first authorsexclusive rights over the derivative markets of their first works is the only way toprevent rent dissipation in these secondary markets.26 Pamela Samuelson’sapproach is to limit interpretation of the derivative work right under Americancopyright law to the nine examples detailed in the Copyright Act, or their closeanalogies. According to Samuelson, these are the only cases in which the Americancase law has afforded protection of the derivative works right, and she argues thatunder this interpretation, the right’s scope cannot be considered as overbroad.27

Introduction 5


Despite relative homogony in the criticism of the derivative works right’s broadscope, there is disagreement as to how that scope should be narrowed. Proposedlimitations can be divided into two categories, internal and external. Commenta-tors in favor of internal limitations suggest narrowly interpreting the right basedon its current statutory definitions,28 or redefining the right through legislation.29

Those who propose external limitations suggest narrowing the right’s scope byadjusting its remedy component. They have suggested denying injunctive relief forinfringement of the derivative works right in favor of monetary reliefs that takeinto consideration both the first owner’s financial interest and second author’scontributions.30 They have further suggested using other legal doctrines,including the fair use doctrine and freedom of speech, to limit the derivativeworks right’s scope.31 They have also suggested binding the derivative worksright to the infringement of another right included in copyright’s bundle ofrights32 by granting property rights to second authors in the unauthorized deri-vative works they create. The idea being that this might mitigate the hightransaction costs involved in attempting to obtain the first owner’s approval.33 Acompulsory license mechanism could then enable authors other than the firstauthor to make derivative works.34

It is noteworthy that the derivative works right’s scope has almost never beenexamined, at least in Anglo-American literature, under the two main theoreticaljustifications for copyright – the Lockean labor-desert theory and personalitytheory. This is not necessarily surprising due to the fact that most of the literatureon the derivative works right is American, whereas these two theories are domi-nant and accepted mostly in England and continental Europe. However, asalready noted, the derivative work right exists in these jurisdictions as well. Thusdiscussing these theories is equally important.

Other concerns raised in the literature include the level of originality and creativityrequired for a derivative work to be considered an original work on its own;35 theaffect that the development of new technologies has on the right;36 and the rela-tionship between the derivative works right and particular fields of creativity.37

Chapter 3 focuses on the steady stream of literature criticizing the broad rightto make derivative works under the economic and democratic approaches tocopyright law. While it agrees with most of the extant criticisms, it also challengessome of the arguments presented. With respect to the argument that the scope ofthe derivative work is too broad, it suggests that the scope of the right’s applica-tion is not the only component which may conflict with its underlying normativejustifications. Rather the scope and strength of the right’s remedies also presentsignificant conflict. It also argues that a narrowly interpreted derivative works rightdoes not solve the tension between the right and its normative basis. Such nor-mative justifications actually require a broader scope of application for the right,specifically in comparison to the reproduction right. Such understanding also fitsbetter with non-legal understandings of creativity.

In addition, Chapter 3 suggests a broader normative discussion on the deriva-tive works right, including an analysis of right-based theories such as the Lockeanand personality approaches to copyright law. With respect to the doctrinal aspects

6 Introduction


of the right, Chapters 4 and 5 present a revised definition for the scope of appli-cation, which focuses on the additional creativity of the second author and itsrelation to the preexisting expressions. Second, they propose a new remediesregime for the right to make derivative works that substantially reshapes the rightin comparison to existing law and literature.

IV. Non-legal aspects of creativity

Chapters 1 and 2 examine the right to make derivative works in light ofnotions and research from other fields of knowledge which relate to creativ-ity. Most of the literature examined in this regard does not deal directly withderivative works, although there is some that focuses on creative patternswhich may relate directly.38 However, at least two fields offer insights intothe derivative works right. The first is cognitive psychology, which focuses,among other things, on the study of the cognitive aspects of the authorduring the creative process. The second is genre theories, which focuses onthe analysis and characterization of creative products that belong to the samecreative domain.

Cognitive psychology understands the creative process as a versatile and com-plex field. It views the creative process as a sub-category of the cognitive process ofproblem-solving. Yet, in contrast to classical problem-solving, its purpose is knownbut the steps towards a solution are not. Indeed, cognitive psychology has offeredvarious characterizations of the creative process based on empirical studies andtheoretical approaches. These characterizations and other notions from the field ofcognitive psychology help explain why the scope of the right to make derivativeworks should be expanded, and why its strength and remedies should be nar-rowed, as will be elaborated in Chapter 1.

Genre theories can be traced back to classical Greek philosophy and to Eur-opean literature from the seventeenth to nineteenth centuries. Its basic principleshave been applied to other fields such as cinematography, music and the visualarts, and today the modern discourse on genre focuses on these fields too. Classi-cal literature understood genre as a set of explicit formal rules with universalapplicability through which discourse could be classified. As of the twentieth cen-tury, however, significant changes in the field led to a questioning of the pre-modern approach and even to doubting the validity of the theory itself. Despiteseveral post-romantic era scholars announcing the dissolution of genre, in the lastfew decades its use has returned to the academic arena and many commentatorspresently use genre as a theoretical tool.

The modern approach still sees classification as an inseparable part of under-standing genres. However it expands the scope of examination beyond the mereclassification by looking to understand the social meaning of discourse and theway in which it affects its participants, its products, and the development of newdiscourse. Modern genre theories use tools from the field of semiotics, includingsemantics and syntax, to examine the building blocks of the specific discourse andthe form and structure of the discourse’s product.

Introduction 7


Chapter 2 uses the genre theories literature to show that classifying the pro-ducts of creative discourse is a significant and central feature of the mere existenceof such discourse because the discourse itself is based, to a certain extent, on thecomparison of mutual building blocks to the new and existing works of authorship.In addition, it shows that other players in the discourse rely on common buildingblocks to understand new works as well as to interact with them. In other words, theuse of common building blocks is inseparable not only from the creative process, butalso from the meaning-making process. The term “common building blocks” refersnot only to the abstract ideas which underlie a specific genre, but also to the concreteexpressions which participants in the genre are aware of, acknowledge, and use. Thisnotion is relevant to the derivative works right as a legal norm because it explainsthat the understanding of any work requires treating it, at least to a certain extent,as a derivative work. In this sense a derivative work is not qualitatively differentfrom an original non-derivative work.

V. Research questions

This book seeks to better understand the right to make derivative works. It focusseson two main aspects of this phenomenon – the non-legal aspects of creativity and theright to make derivative works as a legal norm. The main question with respect tocreativity’s non-legal aspects is the place and significance of reliance on previousknowledge, including previous concrete expressions, in the creative world. Chapter 1examines the internal creative process of the author, using literature from the field ofcognitive psychology. Chapter 2 uses genre theories to examine how participants inthe creative discourse, both the authors and the audience, create and understand thecreative products. With respect to legal norms, Chapter 3 considers the extent towhich the theoretical justifications for the derivative works right are persuasive andwhether its broad definition and strong remedies should remain intact. Chapter 4examines the scope of the derivative works right under current law and asks whether astable definition exists for such a right. Lastly, Chapter 5 discusses what the scope ofthe derivative works right ought to be, both with respect to its applicability and itsaccompanying remedies, in light of the non-legal conclusions and the legal theoreticaljustifications previously addressed.

1) Non-legal aspects of creativity – what is the significance of using priorknowledge?

In order to critically assess the desirable scope of the derivative works right, the sig-nificance of the use of prior knowledge in the creative process must first be examined.This does not mean undertaking a quantitative examination of the number or types ofderivative works in the world. The feasibility of that task is questionable. It meansassessing the significance of the reliance on prior knowledge, including reliance onprotected expressions, to both the creative process generally and to the developmentof the world of creativity as a whole. This in turn requires examining two aspects ofthe creative world: the creative process and creative products.

8 Introduction


Examining the creative process requires asking how and to what extent authorsrely on preexisting works, knowingly or unknowingly, and to what extent parts ofsuch works may influence new works. Chapter 1 reviews cognitive psychology lit-erature that analyses and examines the different stages and sub-processes of thecreative process both theoretically and empirically.

Examining creative products requires assessing the extent to which society needsto use prior knowledge in order to understand new works of authorship and howsignificant to this purpose the inclusion of previous expressions in new works is.Chapter 2 uses genre theories to attempt to explain society’s needs in this respect.Society, as it is exposed to various works of authorship, defines creative domains onthe basis of substantial similarity between works in those domains. This reinforcesthe notion that understanding is, at least in part, based on identifying commonbuilding blocks and the use of preexisting works.

Addressing these questions is important on various levels. First, it facilitatesunderstanding how significant the reliance on prior knowledge is to the creativeworld, both to the process of creation and to the meaning-making process. Second,dealing with these questions concretizes and analyzes the previously mentionedcliché, according to which every work is based on the works that came before it. Thisis important because although the idea of progress does appear in copyright literature,current law does not fully implement it.39 Third, it clarifies whether the right to makederivative works as a legal norm matches the non-legal understanding of creativity.Although the model presented for redesigning the right is not based on these non-legal notions, they do assist in portraying and explaining it.

2) The legal world – what is the scope of the derivative works right and is itjustifiable?

This book’s second part examines the extent to which the right to make derivativeworks matches its underlying normative justifications. For this purpose, it reviewsthe theoretical justifications for the right’s existence, both on their own and in lightof the notions from the first part of the book. As part of this examination, it isimportant to ask whether the main justifications to copyright law – the utilitarianapproach, which includes economic analysis; the Lockean approach; the correctivejustice approach; and the personality approach – also justify the derivative worksright. As previously noted, the existing literature on derivative works focuses mainlyon the economic and democratic justifications for its existence. Therefore, this partonly offers one new criticism of the one economic analysis that justifies the currentderivative works right in its entirety. However, with respect to the personality,corrective justice, and Lockean approaches, it offers full and extensive examina-tions of the derivative work right that do not exist in current literature, it revisitsthese questions, and offers new analysis.

After reviewing the normative justification for the derivative works right and itspositive expression in case law, this part examines how the right could and shouldbe adapted in order to remain within its normative grounds. One aspect addressedis the desired scope of the rights applicability to various uses of first works. The

Introduction 9


focus here is mainly on the interrelation between the right to make derivativeworks and the reproduction right. This part proposes a distinction between thelegal phenomenon of derivative works and that of reproductions based, inter alia,on the notions from the non-legal discussion on the significance of the use of priorknowledge for creativity. It also addresses the derivative works right’s desiredcharacteristics, specifically the strength of its accompanying remedies. The exam-ination of this aspect will also rely, in part, on the non-legal conclusions as well ason the previous normative legal discussion and includes a new proposed model forthe derivative works right, which will be justified and based on the right’s nor-mative justifications. Although the notions from the non-legal discussion cannotfunction as independent justification for the proposed model, the suggested modelis also in line with their understanding of creativity.

The reexamination of the scope of the right to make derivative works as part of thebundle of rights offered to the copyright owner is also important on various levels.First, due to the lack of unity in the existing literature and case law with respect to theright’s current scope, its desired scope, and its justifications, it is important to offer anextensive model for the right that could lead to better predictability and unity in thefield. Second, to the extent that the right could be adjusted to fit both its underlyingnormative justifications and non-legal understandings of the creative world, theresults of an effective reexamination could improve the legal norm. Third, a model forthe right to make derivative works based both on knowledge and theories from non-legal fields of creativity and on legal normative theories is important because the legaltheories alone lack sufficient tools to afford a granular and stable analysis. Addition-ally, such a reexamination highlights the benefits that may be gained through reviewof basic doctrines in copyright law and intellectual property in light of inter-disciplinary research and notions from non-legal fields.

VI. An overview of the main arguments

The course of the book is as follows: Chapter 1 presents the discussion on the creativeprocess according to cognitive psychology and extracts notions which may be used inthe legal context. Chapter 2 discusses the development of genre theories and shows howmodern approaches to genre understand the use of prior knowledge as enabling crea-tivity and facilitating the meaning-making process. It also explains how such notionsaffect the legal discussion. Chapter 3 reexamines the legal-theoretical justifications of theright to make derivative works while focusing on the Lockean approach, corrective jus-tice, and the personality approach. The conclusion of this examination is later used as abasis for the doctrinal discussion. Chapter 4 reviews the development of the right tomake derivative works and the expansion of the reproduction right. It also examines thepositive overlap between the two. In this light, it explains why the theoretical conclu-sions from the previous chapter justify the separation of the derivative works right fromthe reproduction right andmandate limiting the strength of its accompanying remedies.Chapter 5 portrays the most efficient and fair way to adjust the right to make derivativeworks to fit its underlying justifications. It suggests redesigning the right’s scope andproposes a new remedies model which better fits its normative basis.

10 Introduction


1) The cognitive process of creation includes the use of preexisting expressions

Given the versatility and number of different creative styles and methods, a quan-titative-empirical study of the subjective process the author undergoes whilecreating a work seems almost impossible to conduct. Instead, cognitive psychologyexamines typical creative patterns and the scope of use of prior knowledge,including previous expressions, in the creative process.

As previously noted, cognitive psychology characterizes the creative process.However, despite the lack of uniformity and consensus in the field, at least withrespect to a stable and precise definition of what creativity is and what the creativeprocess consists of, an extensive review of the differing views yields several stablenotions about the cognitive process of creation. These have serious repercussions onthe debate about the significance of using prior expressions in the creative process.

In brief, the process of creation is consistently divided into two main phases,which are themselves sometimes further subdivided. In the first stage, the authoruses unfocussed and associative cognition – which could also be described asimagination, epiphany or as the conscious or unconscious – to search for thebeginning of a possible “solution.” This phase resembles, to a certain extent, theromantic approach to creativity and authorship, which sees the creative process as analmost meta-physical activity. In contrast, in the second stage, authors are requiredto crystalize their unfocussed lines of thought into concrete products. This phase isalmost unanimously described as imposing constraints on the unfocussed thought ofthe author. These constraints are driven by preexisting professional knowledge andthe author’s skill in the relevant creative domain. The fact that authors must rely onavailable preexisting knowledge to crystalize their abstract thoughts also requires aninevitable reliance on significant components from prior works of authorship inthe relevant creative domain. Consequently, these function as basic buildingblocks for their creative process. To the extent that this phenomenon is inseparablefrom the cognitive process of creation, it is understandable that prior expression use,which leads, to a certain extent, to the making of derivative works, is a necessary andinevitable part of almost every creative process, or to say the least, of many creativeundertakings.

2) The creative products – genre theories identify common building blocks inshared creative domains

Examining and characterizing the creative product demonstrates that substantialsimilarities exist between works that share the same creative domain, in a way thatproves that the use of preexisting expressions is also identifiable objectively. Thisargument follows from genre theories principles which examine the discourseclassification rules in a specific creative community. While research development inthe field of genre theories originally focussed only on classification of discourseproducts, it has, as previously noted, progressed. It now addresses a more complexstructure of interrelations between the various participants in the discourse and theway in which new classifications develop. Yet this development in no way alters the

Introduction 11


basic, underlying principles of genre theories. Genre analysis still requires theidentification of similarity between different discourse products, a concurrentexamination of the common building blocks which were used, and analysis of theway they were used to make a creative product. In fact, to the extent that there isa close link between the characterization of a discourse in one genre, the pedagogyof new participants in it, the actions of existing participants, and the development ofnew discourse and the creative products; there must be a close link between the wayin which creative products are perceived by the “consumers” and the cognitiveprocess of the author. Moreover, classifying the different features of discourse isnecessary and has social value in itself. This follows, because the act of classificationenables community social interactions around a specific discourse.

3) Reexamination of the justifications for the derivative works right

The conclusion thus far is that there is a mismatch between non-legal under-standings of creativity and the legal right to make derivative works. In this light,Chapter 3 reexamines the legal-theoretical justifications to the existence of theright, specifically copyright law’s four main justifications: the utilitarian approach,the Lockean approach, corrective justice and the personality approach.

The current literature on derivative works has already reviewed and criticized thisright on economic and democratic grounds. Therefore, Chapter 3 presents a shorterdiscussion of these approaches, including only additions to or comments upon theexisting literature. With respect to the economic approach, it reaffirms many of thecriticisms of the economic approach and its ability to justify the existing broad deri-vative works right and relies primarily on non-legal discussion to do so. In addition, itattempts to contest Abramowicz’s approach, which justified the right using the prin-ciple of rent dissipation in secondary markets. Derivative works do not necessarilycreate secondary markets for the original works. Their purpose is to develop andmake the primary market more efficient. As far as the democratic criticisms are con-cerned, Chapter 3 considers the limitations cast on the derivative works right by thefair use doctrine. It emphasizes the differences between the two doctrines, specificallywith respect to transformative use.40 It also explains that the fair use doctrine com-plements the book’s proposed derivative works model.

With respect to the Lockean approach, Chapter 3 reviews the right’s currentbroad scope, at least as far as it is based on Locke’s justifications for granting rightin the fruits of one’s labor. It focusses on Locke’s two provisos and interpretsthem based on the non-legal understanding of creativity.41 The derivative worksright may violate Locke’s second proviso, also known as the non-waste proviso. Itpractically guarantees waste by granting first authors a quasi-monopoly withrespect to the development of their works and secondary markets but placing noobligation on them to further develop their works. The derivative works right mayalso violate Locke’s first “sufficiency” proviso, which restricts the individual’s rightto use common property to those that leave enough and qualitatively equivalentresources in common for others. By depriving society of the ability to furtherdevelop the primary market of a work or to create secondary markets for it, the

12 Introduction


derivative works right potentially leaves others with fewer and less valuableresources than existed prior to the first work’s creation. This is true even whenconsidering the resources in the public domain which are not considered “repro-ductions” of the first work. Thus, the Lockean theory cannot justify the currentscope of the derivative works right.

With respect to corrective justice, which is based on Kant’s doctrine of right,Abraham Drassinower has asserted that there is no justification for a derivative worksright at all.42 However, Chapter 3 suggests a different interpretation of correctivejustice, according to which the right could be justified so long as it does not empowerfirst authors to enjoin subsequent authors from producing derivative works. Theseinterpretations are based on Kant’s principle of universal right, according to whichevery person’s freedom is subject to the ability of all other persons to enjoy the samedegree of freedom. With respect to the derivative works right, then, second authorsmust be afforded the same freedom to act in the world that first authors enjoy. Thismust include the ability to use expressions from previous works, including otherauthors’ first works. Chapter 3 proposes and explains a model which allows secondauthors the right to use expressions from first works, but also imposes on them theobligation to share any revenues from such use with first authors.

In contrast to the external criticisms of the personality approach raised in theliterature, Chapter 3 presents an internal criticism which employs a philosophicalunderstanding of the autonomy of expression, together with hermeneutic approa-ches, to illustrate the personality justification’s limitations.43 It uses Hans GeorgGadamer’s hermeneutic model for the act of interpretation, which he divided intothree stages – understanding, interpretation and application,44 to demonstrate thatthe application of the interpretive result changes the perception of the interpreter andher behavior. To this model, it then adds Roberta Kwall’s distinction between thefirst author’s meaning, i.e. the work’s subjective meaning to its author, and thework’s message, i.e. the way in which the author wishes her work to be perceived bysociety.45 These subjective elements should be protected in order to enable firstauthors to achieve autonomy. When a person is subjected to a message that an authorwishes to share with society, this person undergoes an interpretive process whichresults in changes of the expressions in that message, creating a different meaningthan that intended by the first author. Subordinating the second person’s interpreta-tion to the first person’s message, and to it alone, ignores the second person’s rightand ability to act and express herself according to her free will.

According to each of the approaches, the independent existence of a derivativeworks right, in contrast to the reproduction right, is justified but the strength ofits remedies should be diminished. This conclusion will be later used to adjust theright to make derivative works to align with its underlying justifications.

4) The existing overlap between the derivative works and reproduction rights

Due to the fact that the right to make derivative works developed side by side withthe systematic expansion of the reproduction right, the relationship between therights has always been unclear. Whether the derivative works right is fully included

Introduction 13


in the reproduction right remains an open question. Thus, for example, DavidNimmer has argued that the right to make derivative works is superfluous because fora work to be “derivative” it must be significantly based on a previous work. Accord-ing to him, to the extent that the derivative work includes expressions which aresubstantially similar to the first work, it inevitably infringes the reproduction right andno further claim with respect to the derivative works right is necessary.46 Othercommentators have asserted that this overlap is not complete, since there are cases inpositive law in which a derivative work is created without reproduction.47 However,Chapter 4 argues that in American and English laws, the overlap is almost complete.In English law, it exists due to the explicit statutory language according to which theexistence of an adaptation does not preclude the existence of copying.48 In Americanlaw, it exists due to the infringement tests established by the courts with respect to thereproduction and derivative works rights. They create a de facto overlap despite thefact that the rights have separate legislative sources.

5) Criticizing the current right to make derivative works

In light of the overlap between the derivative works right and the reproductionright, and due to the mismatch between the derivative works right’s strength and itsunderlying justifications, Chapter 4 criticizes the current right’s definition andapplication. The derivative works right’s separate legislative definition and its distinctunderlying justifications should lead not only to a separate legal analysis, but also toa complete separation from the reproduction right and a change to its attendantremedies. The crux of the argument is that, following the classification of a certainaction as the making of a derivative work, the reproduction right should no longerbe invokable and the remedies to which the first author is entitled should thus belimited in comparison to those offered by the reproduction right.

To make this point Chapter 4 first presents existing criticism of the derivativeworks right and different suggestions for to resolve the difficulties raised. It alsopoints out the deficiencies in such literature. As previously noted, a common cri-ticism is that the derivative works right is overbroad.49 Some commentators haveargued that the derivative works right limits the second author’s freedom ofspeech in an unacceptable manner and therefore should be narrowed. Othercommentators have argued that the right to make derivative works is economicallyinefficient because it hinders creativity more than it promotes it. Although theexisting literature has theoretically reviewed the difficulties which the derivativeworks right raises, it does not offer a sufficient solution to resolve such difficulties.Specifically, it does not deal with both the positive overlap between this derivativeworks right and the reproduction right, and the independent normative justifica-tions for the derivative works right.

Chapter 4 argues that the right to make derivative works should be completelyseparated from the reproduction right, and that the strength of its accompanyingremedies should be limited. It also asserts that only by reviewing justifications andremedies together can the problems with the current derivative works right beresolved. These aspects are necessarily interrelated for two main reasons. First,

14 Introduction


much like any other legal right, the strength of the derivative works right is depen-dent both on its scope of applicability and the scope of its remedies. Second, whilethe derivative works right’s normative justifications do establish it as an independentright, they render its limitations on subsequent authors unjustified at the same time.Therefore, focussing only on one of these two aspects – scope of applicability or thescope of remedies – cannot suffice.

Additionally, although the non-legal conceptions of creativity do not functionas an independent normative justification for redesigning the current derivativeworks right, they do mesh better with a revised model of the right. I argue thatthis is more than just a happy coincidence. It is an indication that copyright lawdoctrines better align with deeper, non-legal understandings of the creative pro-cess and creativity when they conform to their own underlying normative justifi-cations and fulfill their overarching goal of nurturing the creative world.

6) Redesigning the derivative works right

Having established that two main features of the derivative works right should beadjusted, Chapter 5 explores a way to redesign the right that seeks to match it toits underlying justifications.

First, it proposes a new definition and scope of applicability for the derivativeworks right that fully separates it from the reproduction right. When secondauthors combine substantial parts of preexisting works with their own substantial,qualitatively creative additions that are both inseparable from the existing expres-sion and cannot be substituted with existing non-protected expressions – theactivity they are engaging in should be considered derivative works making, notreproduction. Thus, the derivative works right’s definition should be redesigned toensure that it applies to such cases, even if they are presently governed by thereproduction right under current case law. To illustrate the suggested definition,several examples of typical actions that ought to be encompassed by the newdefinition are discussed.

In addition, Chapter 5 establishes a separate and independent discourse on theright to make derivative works that focusses on analyzing its boundaries and under-lying justifications, which includes many cases which were previously analyzed andreviewed under the reproduction right. It also explains how the suggested definition,which separates the two rights, allows for a different discussion of remedies, resolvingmany of the difficulties which have previously arisen when duplicate damages havebeen awarded for the infringement of both rights simultaneously. It also considersthe changes the new definition effects between first and second authors, thirdparties, and potential infringers.

The normative justifications for the derivative works right require limitation ofthe strength of remedies it offers today. In fact, they require a transition from thecurrent protection of property rule to a liability rule.50 To explain the most efficientand fair model to achieve such goal, Chapter 5 also reviews various suggestions foralternative remedies models and explains their deficiencies. The model settled uponproposes establishing a compulsory license for the making of derivative works,

Introduction 15


which is subject to the payment of fair royalties. Transition to a compulsory licensemodel may raise some difficulties, both theoretical and practical. However, thesecan be overcome. In addition, practical questions will be addressed – like howroyalties should be determined, whether different types of royalties should apply todifferent types of works, whether first authors should ever have exclusive rights tomake subsequent works. The ability to supervise such a model and its potentialcosts are also examined.

The proposed remedies model enables second authors to use expressions frompreexisting works to make derivative works without the first author’s consent.However, this right to engage in derivative works creation would be subject to thepayment of fair royalties, derived from future revenues of the derivative work. Ifthe parties do not reach an independent agreement as to these royalties, the pro-posed model provides that the second author may turn to a judicial tribunal to setthe rate, subject to a payment of a preliminary fee for the costs of the procedureand the potential goodwill benefits from using expressions from the first work.Lastly, the entire mechanism would be subject to a blocking period during whichthe first author would maintain the exclusive right to make derivative works her-self, or license others to do so.

The advantage of such a model over alternative models lies in its quasi-insur-ance effect. It is safe to presume that second authors who elect to use compulsorylicenses will be able to protect themselves from reproduction claims. First authorswill have less incentive to sue than they do now, due to the revenues to whichthey will automatically be entitled in works characterized as derivative. This isespecially true with respect to works that it may be difficult to prove constitutemere reproductions. In addition, first authors will function as gatekeepers toensure that derivative works are sufficiently creative and original. Open and shutcases of reproduction will still be litigated under the reproduction right, but bor-derline cases that contain at least some creative and original expression will likelybe allowed to exist unchallenged, but subject to royalties. Thus the chances thatthe model would be exploited for the purpose of making infringing reproductionswill actually be lower. The proposed model also resolves many of the derivativeworks right’s theoretical difficulties by removing the restraints it currently placeson subsequent authors to use preexisting expression to engage in creativity. Inaddition, it fits better with the non-legal understanding of creativity in that it doesnot prefer first authors a priori and equalizes, or at least substantially improves, theposition of second authors who explicitly use previous expressions in comparisonto second authors whose use of such expressions is more latent.

Chapter 5 concludes with a discussion of the proposed model’s relationshipwith other copyright and intellectual property doctrines, specifically the fair usedoctrine, moral right doctrine, and trademark law. Thus, for example, this lastsection will argue that, to the extent that a specific use is allowed under the fairuse doctrine or any other permitted use doctrine, there will be no need for acompulsory license, nor will a user have to wait for the end of the blocking period.In contrast, when a derivative work would infringe the moral right of the firstauthor, the compulsory license is not a cure for such infringement.

16 Introduction


Notes1 17 U.S.C. § 106.2 Articles 8–15 to the Berne Convention on the Protection of Literary and Artistic

Works; WIPO Copyright Treaty art. 6–8, Dec. 20, 1996. For elaboration on the rele-vant aspects of the TRIPs agreement see Daniel Gervais, THE TRIPS AGREEMENT: DRAFTING

HISTORY AND ANALYSIS 242–56, 265–72, 292–310 (4th edn 2012).3 Hereinafter, a wholly original work of authorship will be referred to as a “first work.”

Likewise, the owner of a first work will be referred to as “the first author.” In the samevein, a derivative work based on a first work will be referred to as a “second work,” andthe derivative work’s author will be referred to as a “second author.”

4 17 U.S.C. § 101, 106; Copyright, Designs and Patents Act, 1988 s. 21.5 The question if this would constitute a derivative work is dependent, among other con-

siderations, on the what was exactly taken from the first work. To the extent that the secondwork uses protected expressions from the first work (such as characters, specific scene andprotected plot lines), it would constitute a derivative work, see, e.g., Salinger v. Colting, 607F.3d 68, 71–72 (2d Cir. 2010). (A sequel to the book “The Catcher in the Rye”was foundinfringing upon the copyright of J.D. Salinger due to the use of characters from the firstwork.) However, to the extent that only the general idea underlying the first work wastaken, or even if the second work uses only the names of characters from the first work butnot their characteristics, the second work would be considered an original work. This pointdemonstrates the interface between the right to make derivative works, the reproductionright and the fair use doctrine, since the reproduction right protects the owner of the firstwork from partial reproductions of the works including the reproduction of characters froma full plot, and on the other side, satirical use of the first work or a use that significantlytransforms its expression may grant the user or the second author a defense under the fairuse doctrine. I will elaborate on these interfaces in parts IV.4 and IV.5.

6 Although the legislative language is unclear under the law in the United States, courtshave ruled that a derivative work created without the first author’s consent will not beeligible for copyright protection with respect to the second author. See Anderson v.Stallone, 1989 U.S. Dist. LEXIS 11109 (C.D. Cal. Apr. 25, 1989); Pickett v. Prince,52 F. Supp. 2d 893, 906–07 (N.D. Ill. 1999).

7 Paul Goldstein, Derivative Rights and Derivative Works in Copyright, 30 J. COPYRIGHT

SOC’Y U.S.A. 209, 218 (1983). This notion is so common that Google has chosen it as theslogan for its academic search engine Google Scholar. See http://scholar.google.com.

8 Jessica Litman, The Public Domain, 39 EMORY L.J. 965, 966 (1990).9 For a discussion on these types of creativity and the influence legal rules have on them

see Peter Dicola, An Economic View of Legal Restrictions on Musical Borrowing andAppropriation, in MAKING AND UNMAKING INTELLECTUAL PROPERTY 235 (Mario Biagioli,Peter Jaszi and Martha Woodmansee eds, 2011); Peter S. Menell, Adapting Copyrightfor the Mashup Generation, 164 U. PENN. L. REV. 441 (2016).

10 17 U.S.C. § 101.11 For an elaboration on the historical development of the right to make derivative works

see: Oren Bracha, The Ideology of Authorship Revisited: Authors, Markets, and LiberalValues in Early American Copyright, 118 YALE L.J. 186, 224–33 (2008); Goldstein,supra note 7, at 211–15.

12 For elaboration on the parallel development of both rights see infra Chapter 4.13 Copyright, Designs and Patents Act, 1988 s. 21.14 See, respectively, Code de la Propriété Intellectuelle (C. Prop. Intel.), art. L122–4;

Urheberrechtsgesetz [Copyright Act] Sept. 9, 1965, BGBL. I at 1273, § 23, as amended,Oct. 1, 2013, BGBL. I at 3728. See also 1 André Lucas & Pascal Kamina, France, inINTERNATIONAL COPYRIGHT LAW AND PRACTICE § 2[3][a] (Paul Edward Geller ed., 2014); 2Adolf Dietz, Germany, in INTERNATIONAL COPYRIGHT LAW AND PRACTICE § 2[3][a] (PaulEdward Geller ed., 2014).

Introduction 17


http://scholar.google.com

15 Goldstein, supra note 7, at 217, 227.16 See infra part III.17 Goldstein, supra note 7, at 240–1.18 Patrick W. Ogilvy, Frozen in Time? New Technologies, Fixation, and the Derivative

Work Right, 8 VAND. J. ENT. & TECH. L. 687, 694–95 (2006). Returning to the HarryPotter example, changing the method of presentation of the first work may happen ifthe character of Harry Potter will be displayed in the Tate gallery to criticize modernfictional literature, while incorporating the character of Harry Potter in a new booktitled “Harry Potter in Space” will bring a change to the original work. This type ofdistinction may be significant in the context of the interface between the right to makederivative works and the fair use doctrine. See R. Anthony Reese, Transformativenessand the Derivative Work Right, 31 COLUM. J.L. & ARTS 467 (2007).

19 Goldstein, supra note 7, at 241–2; Melville B. Nimmer & David Nimmer, NIMMER ON

COPYRIGHT § 3.03 (2016) (hereinafter: NIMMER ON COPYRIGHT).20 As William Patry has put it, “regrettably the understanding of derivative works is fast

approaching incomprehensibility.” See William F. Patry, PATRY ON COPYRIGHT § 3.46(2012).

21 The main theories discussed in the literature with respect to the derivative work rightare economic analysis, Lockean labor-desert theory, personality theory and the demo-cratic justification to copyright law.

22 For elaboration, see infra Chapter 3. This tension is “external” to the derivative workright. For a distinction between “external” and “internal” tensions in the context ofcopyright law see Michael Birnhack, Copyright Law and Free Speech After Eldred v.Ashcroft, 76 S. CAL. L. REV. 1275, 1292–1305 (2003).

23 For a discussion on the democratic approach to copyright law see Neil WeinstockNetanel, COPYRIGHT’S PARADOX 3 (2008); Netanel, Copyright and a Democratic CivilSociety, 106 YALE L.J. 283, 347–64 (1996); Yochai Benkler, Free as the Air to CommonUse: First Amendment Constrains on Enclosure of the Public Domain, 74 NYU L. REV. 354(1999); Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach toCopyright Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 277–83 (1996).

24 William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J.

LEGAL STUD. 325, 328–29 (1989); William M. Landes & Richard A. Posner, THE ECO-

NOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW 108–15 (2003); Goldstein, supra note7, at 216. Absent such a right, it is argued, an author of a work will not have anyincentive to create it to begin with due to the fact that intellectual creations are publicgoods and due to other “hitchhiking” problems. This tension is internal to the deriva-tive work right. See Birnhack, supra note 22.

25 For elaboration, see infra Chapter 3.26 Michael Abramowicz, A Theory of Copyright’s Derivative Work Right, 90 MINN. L. REV.

317, 357–8 (2005).27 Pamela Samuelson, The Quest for a Sound Conception of Copyright’s Derivative Work

Right, 101 GEO. L.J. 1505, 1513–15 (2013). The nine examples under the Copyright Actare translation, musical arrangement, dramatization, fictionalization, motion picture ver-sion, sound recording, art reproduction, abridgment, condensation. See 17 U.S.C. § 101.

28 See Daniel Gervais, The Derivative Right: Or Why Copyright Law Protects Foxes BetterThan Hedgehogs, 15 VAN. J. ENT. & TECH. L. 785 (2013); Chris Newman, Transformationin Property and Copyright, 56 VILL. L. REV. 251, 258 (2011); Tim Wu, Tolerated Uses, 31COLUM. J.L. & ARTS 617, 631–2 (2008). Samuelson’s support of the derivative work rightin its current definition is also based on this approach.

29 Naomi Abe Voegtli, Rethinking Derivative Rights, 63 BROOK. L. REV. 1213, 1267(1997).

30 Paul Edward Geller, Copyright in Crisis: Principles for Change, 56 J. COPYRIGHT SOC’Y U.S.

A. 165 (2008); Paul Edward Geller, Hiroshige vs. Van Gogh: Resolving the Dilemma ofCopyright Scope in Remedying Infringement, 46 J. COPYRIGHT SOC’Y U.S.A. 39, 61 (1998);

18 Introduction


Orit Fishman-Afori, Flexible Remedies as a Means to Counteract Failures in CopyrightLaw, 29 CARDOZO ARTS & ENT. L.J. 1 (2010); Jed Rubinfeld, Freedom of Imagination:Copyright’s Constitutionality, 112 YALE L.J. 1, 57–58 (2002); Goldstein, supra note 7, at238 n. 94; Ralph S. Brown, The Widening Gyre: Are Derivative Works Getting Out ofHand, 3 CARDOZO ARTS & ENT. L.J. 1, 21 (1984).

31 Christina Bohannan, Taming the Derivative Work Right: A Modest Proposal for Redu-cing Overbreadth and Vagueness in Copyright, 12 VAND. J. ENT. & TECH. L. 669, 696–7(2010); Voegtli, supra note 29, at 1265–6; Netanel, supra note 23.

32 Tyler Ochoa, Copyright, Derivative Works, and Fixation: Is Galoob a Mirage or Does theForm(Gen) of the Alleged Derivative Work Matter?, 20 SANTA CLARA COMP. & HIGH TECH. L.

J. 991, 1020 (2004).33 Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75 TEX. L.

REV. 989, 1047 (1997).34 The possibility to use a compulsory license mechanism for derivative works was suggested

by a small number of commentators, most of which immediately ruled out suchmechanism for unjustified reasons to my concern. See Voegtli, supra note 29, at 1264–5.

35 Steven S. Boyd, Deriving Originality in Derivative Works: Considering the Quantum ofOriginality Needed To Attain Copyright Protection in a Derivative Work, 40 SANTA

CLARA L. REV. 325, 350–77 (2000); NIMMER ON COPYRIGHT, supra note 19, at 3.03.36 Lydia Pallas Loren, The Changing Nature of Derivative Works in the Face of New

Technologies, 4 J. SMALL & EMERGING BUS. L. 57, 77–8 (2000).37 The main discussion in the American literature and case law focussed on post-modern

art, which aims at, by definition, using preexisting works, and specifically to environ-mental sculptures and sampling, remix and mash-up techniques in the musical world.See Voegtli, supra note 29, at 1221–6; Dicola, supra note 9; Landes & Posner, supranote 24, at 254–69.

38 Most of the literature in this field focuses on post-modern or appropriation art. See, e.g.,Philip A. Gunderson, Danger Mouse’s Grey Album, Mash-Ups, and the Age of Composi-tion, 15(1) POSTMODERN CULTURE 4 (2004); John Shiga, Copy-and-Persist: The Logic ofMash-Up Culture, 24 CRITICAL STUD. MEDIA COMM. 93 (2007); Nicholas Diakopoulos,Kurt Luther, Yevgeniy “Eugene” Medynskiy, Irfan Essa, The Evolution of Authorship ina Remix Society, PROCEEDINGS OF THE EIGHTEENTH CONFERENCE ON HYPERTEXT AND HYPER-

MEDIA 133–34 (Simon Harper et al. eds, 2007).39 For elaboration on the idea of progress in copyright law see Michael Birnhack, The Idea

of Progress in Copyright Law, 1 BUFF. IP L.J. 3 (2001).40 Transformative use is a term suggested by Judge Pierre N. Leval in his article Pierre N.

Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105 (1990). The term was lateradopted by the Supreme Court of the United States in Campbell v. Acuff-Rose MusicInc., 510 U.S. 569, 576 (1994). Transformative use was defined as a use that addssomething new of different purpose or character and changes the first expression. Forelaboration see Neil Weinstock Netanel, Making Sense of Fair Use, 15 LEWIS & CLARK L.

REV. 715, 724, 746 (2011).41 For elaboration on the Lockean provisos see Robert P. Merges, JUSTIFYING INTELLECTUAL

PROPERTY 48–66 (2011).42 Abraham Drassinower, Taking User Rights Seriously, in IN THE PUBLIC INTEREST: THE

FUTURE OF CANADIAN COPYRIGHT LAW 462, 471 (2005); Abraham Drassinower, WHAT’S

WRONG WITH COPYING? 222–4 (2015).43 For the argument that the individual’s autonomy is at the heart of the personality

approach to copyright see Neil Netanel, Copyright Alienability Restrictions, 24 RUTGERS

L.J. 374, 374–6 (1993).44 Hans-Georg Gadamer, TRUTH AND METHOD 306 (2nd edn, Joel Weinsheimer & Donald

G. Marshall trans. & revs., 2004).45 Roberta Rosenthal Kwall, THE SOUL OF CREATIVITY 2–3 (2010).46 NIMMER ON COPYRIGHT, supra note 19, at § 8.09[A][1].

Introduction 19


47 See, e.g., Gervais, supra note 28, at 844.48 Copyright, Designs and Patents Act, 1988 s. 21(5).49 This notion was suggested by Samuelson. See Samuelson, supra note 27, at 1510 and

the literature described in note 24 id.50 Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules and Inalien-

ability: One View of the Cathedral, 86 HARV. L. REV. 1089 (1972).

20 Introduction


copyright law and derivative works...giants” refers to the “obvious” notion that no work of...

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